Working Group on Arbitration Detention statement upon conclusion of its visit to Brazil (18 to 28 March 2013)

28 March 2013

The United Nations Working Group on Arbitrary Detention conducted an official country visit to Brazil from 18 to 28 March 2013, following an invitation from the Government. The delegation consisted of two Members of the Working Group: Mr. Roberto Garret ón (from Chile) and Mr. Vladimir Tochilovsky (from Ukraine). They were accompanied by staff of the United Nations Office of the High Commissioner for Human Rights in Geneva.

The Working Group would like to thank the Government of the Federal Republic of Brazil for the invitation to visit the country. The Working Group was able to carry out the various stages of the visit due to the Government’s full cooperation. It would also like to thank the United Nations Development Programme (UNDP) for its assistance in preparing the visit. The Working Group also extends its appreciation to the civil society organizations that it was able to meet in Brazil.

The Working Group benefited from various meetings held with Federal and State authorities and it appreciates the valuable information they have provided. It met with senior authorities from the Executive and Judicial branches of the Federation, including: the Minister of Justice; the Minister of Health; the Minister, Chief of the General Secretariat of the Presidency of the Republic; the Minister, Chief of the Human Rights Secretariat of the Presidency of the Republic; the Minister, Chief of Staff of the Presidency of the Republic; the Superior Tribunal of Justice (STJ); the National Council of General Public Defenders (CONDEGE); a representative of the Federal Council of Lawyers Guild of Brazil (OAB); the National Council of the Public Ministry (CNMP); the National Council of Justice (CNJ); the National Secretariat of Public Security (SENASP); the National Penitentiary (DEPEN); the National Ombudsmen on Human Rights; the Human Rights Defense Council; the Secretariat for Policies on Women; the Secretariat for Policies on Promotion of Racial Equality; the Health Provision Secretariat; the National Secretariat for Promotion of Children and Adolescents Rights (SNPDCA) and the National Secretariat for Promotion and Defense of Human Rights.

In all the cities that it visited, the Working Group met with officials of the various Ministries; first instance judges and prosecutors; and local authorities. In the Federal District, it met with representatives of the Tribunal of Justice, the Public Ministry and the Public Defense Office, as well as with the State Secretariats of Public Security; Children and Minors; and Justice, Human Rights and Citizenship. In the State of Ceará, the Working Group met with representatives of the Tribunal of Justice, the Public Ministry and Public Defense as well as the Ceará Secretariat of Justice and Citizenship. In Rio de Janeiro, it met with representatives of the Tribunal of Justice; the Public Ministry and the Public Defense, as well as with the Secretariat of Social Assistance and Human Rights and the Secretariat of Security.

During its visit to São Paulo, the Working Group conducted meetings with the State Secretariat of Public Security and with the State Secretariat of Penitentiary Administration, as well as with representatives of the Tribunal of Justice; the Public Ministry and the Public Defense Office. Lastly, in Mato Grosso do Sul, the Working Group held meetings with representatives of the Tribunal of Justice; the Public Ministry and the Public Defense Office, as well as the State Secretariat for Justice and Public Security and the State Agency of Administration of the Penitentiary System. In the States visited, the Working Group also met with members of Parliament; with representatives of the Bar Associations; with representatives from international organizations; and with Brazilian civil society organizations.

The Working Group appreciates that it was able to visit all the places of detention it had requested and to conduct private interviews with the detainees of its choice without restriction.

The Working Group visited places where persons are deprived of their liberty in Brasilia, Campo Grande; Fortaleza; Rio de Janeiro and São Paulo. In Ceará, the Working Group made an unannounced visit to a police station and visited the III Detention Facility “Professor Juca Neto” (Complejo Penitenciario Estadual Itaitinga II) as well as the Psychiatric Unit of the Sanatory and Penal Hospital Ota Lobo. In Rio de Janeiro, it visited the Penitentiary Complex of Gineciro in Bangu “Vicente Piravige” as well as the Centre Belford Roxo (CAI-Baixada). In the State of São Paulo, the Working Group visited the Experimental Health Unit (Unidade Experimental de Saúde) as well as the Temporary Detention Facility I de Pinheiros. Lastly, the delegation visited the Farm Colony (Colónia Agrícola) of Campo Grande.

With regard to the protection of human rights, Brazil is a party to various international and regional human rights treaties and agreements, including the International Covenant on Civil and Political Rights. At the national level, the 1988 Federal Constitution of Brazil provides protection for core fundamental rights, including the right to not be arbitrarily deprived of one’s liberty. It also provides, inter alia, for the right to free legal assistance for the indigent; the right of arrested persons to specific judicial remedies such as habeas corpus; the right of an arrested person to be informed of his or her rights; the right to have a judicial order absolving an illegal arrest and the right not to be imprisoned where the law permits release on one’s own recognizance. Various pieces of legislation have been enacted in the past years which have reinforced the constitutional right to liberty.

The Working Group observed a number of positive initiatives, such as the 2011 amendments to the Criminal Procedure Code stipulating that preventive detention is to be considered a last resort and applicable to those who have committed crimes with less than four years imprisonment. The provision on precautionary measures is also progressive, providing alternative measures to deprivation of liberty. The Law of Penal Execution, amended in 2011, provides benefits such as reduction in prison sentences if the prisoner took the initiative to pursue education. Positive legislative reforms regarding adolescents who are in conflict with the law and in relation to persons with mental disabilities have been enacted as well. The Working Group also observed good practices that have the potential to be reinforced for further protection of the right to be free from arbitrary deprivation of liberty. Some of these include existing institutions that can be strengthened, such as the task force of the National Council of Judges which visits prisons and assisted in the past few years in releasing many detainees who were illegally detained. Similar independent task forces have the ability to assist in protecting against arbitrary detention if they are established at State levels in Brazil.

Notwithstanding the positive initiatives observed, the Working Group would like to draw to the Government’s attention a number of issues that need to be effectively addressed in order to ensure rigorous protection against arbitrary deprivation of liberty.

First, despite the positive legal reforms in the criminal justice system, the Working Group observed that in practice, access to justice for arrested persons and detainees is severely deficient in many aspects. Several prerequisites provide fundamental protection against arbitrary deprivation of liberty. These include core rights of arrested and detained persons at the pre-trial stage; trial stage and after a conviction has been executed. Deprivation of liberty is thus considered to be arbitrary if particular rights to fair trial are violated. These rights are related to the right to be presumed innocent until proven guilty according to law; the right to effective legal defence; the right to be tried without undue delay and the right to appeal to a higher court.

Throughout its visit, the Working Group consistently referred to international human rights standards particularly those enshrined in the International Covenant on Civil and Political Rights which Brazil acceded to. In particular, article 9 provides the safeguards against arbitrary deprivation of liberty, namely: that an arrested person should not be deprived of his/her liberty illegally; that he/she should have the right to be informed at the time of the arrest of the reasons for the arrest; the right to be promptly informed of any charges against him/her; the right to be promptly brought before a judge; and the right to be tried within a reasonable time or to be released. Article 9 also states that it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.

In light of this, the Working Group is seriously concerned with excessive use of deprivation of liberty in Brazil. Brazil has one of the world’s largest prison populations with more than 550,000 persons in prison. What is more troubling is that around 217,000 detainees are awaiting trial in pre-trial detention. The number of indigenous people in the prison population has also increased by 33 per cent during the last years. The Working Group was further informed that indigenous persons were often discriminated against both when preventive measures were applied and when punishment was imposed which often involved harsh imprisonment. The worrying trend observed is that deprivation of liberty is being used as the first resort rather than the last as required by international human rights standards.

The Working Group noted that as a result of excessive detention, detention facilities were usually overcrowded. In some cases, the number of detainees exceeded the capacity by 100 per cent. In addition, an estimated 192,000 arrest warrants have yet to be executed.

Despite the amendment of the Criminal Procedure Code in 2011 to allow for alternative measures to detention, the Working Group observed that there was no substantial reduction in the use of detention since the introduction of this amendment. In incidences where measures such as bail were applied, the detainee was not able to pay the amount required. The Working Group found that deprivation of liberty was imposed even in situations where the offence was regarded to be minor such as petty non-violent theft or for non-payment of child support, raising serious concerns with regard to the application of the principle of proportionality.

During the visit, the Working Group came across cases where prolonged pre-trial detention lasted for many months, even years. During that period, the detainee did not know what was happening to his/her case. The Working Group was constantly informed that backlog in the courts caused substantial and serious delay for trials. Appeals to the higher courts also took a long time to resolve.

The problem with access to justice for detainees has been worsened by severe lack and sometimes absence of effective legal assistance. A common complaint heard from all parties interviewed, including members of the judiciary, was that there are not enough public defenders or legal assistance available to service those who are in detention. The majority of those who are in prison are young, black men who are from poor backgrounds and who cannot afford private lawyers. The Working Group observed in general that the majority of those disadvantaged in the criminal justice system, including adolescents and women, were poor and could not afford the means to a proper legal defence.

The overburdening workload of public defenders is also a critical problem. Public defenders who provide free legal aid can have as many as 800 cases to deal with at one time. This adversely impacts the right of a detainee to equality and fair trial. Even in States where there is a public defence system, often the rural or country areas do not have public defenders servicing those in detention. The work overload often meant that public defenders were not fully efficient in carrying out their responsibilities. Detainees also stated that they only met their public defender at the beginning of their trial (arraignment) which can occur months after their arrest. In some cases, it took years before one appeared in court. The chance of meeting and discussing one’s case before trial was higher if one had a private lawyer. The Working Group notes that public defenders do not lack the necessary competency and qualification to carry out their responsibilities but that the problem relates to the cumbersome workload they have to manage. The deficiency in having obtained effective legal assistance is more problematic due to the absence of probono services to detainees, such as in the State of São Paulo. Judges also informed of their own trouble with handling mounting caseloads and in some places there were very few judges dealing with criminal cases.

Due to the lack of proper legal assistance, the Working Group encountered many cases where detainees were entitled to benefits such as moving from a closed regime to a semi open regime which could not be obtained due to the absence of legal assistance to secure this right. The delay in getting a judicial order to initiate the process was a constant issue raised throughout the visit. The Working Group notes that the National Council of Judges’ mass release of prisoners in the last two years is evidence that the criminal justice system is severely lacking in providing effective and adequate legal assistance that can help in following up a detainee’s case. The arbitrary nature of these cases is further exemplified by the fact that those who qualify for release or benefits are the economically disadvantaged who cannot afford private legal assistance to help their case.

The Working Group was further informed of problems with detainees and prisoners accessing and communicating with their relatives and lawyers due to the absence of telephones or appropriate channels of communication. To contact one’s lawyer, a detainee often had to communicate through family members when they would visit. If one did not have family, there was no way of contacting the lawyer to find out the information regarding one’s case.

Second, the compulsory confinement of drug users is also an issue of concern for the Working Group. The excessive use of detention as a punitive measure in the context of drug users raises questions regarding various fundamental human rights.

The Working Group was informed that in the State of São Paulo, compulsory confinement of “crack” and other drug addicts has taken place in an effort to bring users who are on the street into detention. In the State of Rio de Janeiro, most of those targeted under compulsory drug treatment have been children and adolescents living on the streets. Those detained in this context were often placed in facilities that their families or lawyers were unaware of and there were serious difficulties in accessing them. Habeas corpus is permitted by law, but difficult to use in practice, for instance, with those detained for drug addiction. It is necessary to know their identity and where they are being held, information which is often difficult to obtain.

Police agents are said to target drug users in order to arrest them and have often carried out arrests indiscriminately. The Working Group is seriously concerned with information that these measures are also strongly enforced due to forthcoming major events such as the Football Association World Cup in 2014 and the Summer Olympics Games in 2016 which Brazil will host.

The issue of compulsory confinement is also worrying as judicial periodic review is often not carried out once a drug user has been put in detention. The absence of judicial review means that a person can also be detained for prolonged periods even when he or she is eligible to be released. This is all the more important given that the number of those arrested for drug related offences in the country is very high.

Third, with regard to the situation of minors, the Working Group was informed that crimes, offenses and misdemeanours committed by adolescents and children are considered infractions and recorded in the National Registry of Adolescents in Conflict with the Law. Brazilian law considers as adolescents those who are between the age of 12 and 18. Between January and June 2011, 29,506 adolescents were subjected to socio-educational measures and 91,321 were placed at the National Registry. No adolescent may be deprived of his or her liberty during more than 45 days waiting for a judicial decision. An adolescent is detained for a maximum of three years after which he or she is released.

The Working Group reiterates the necessity of the need to employ alternative measures to detention as required by international human rights standards, particularly in dealing with minors. The Working Group was informed of many cases where minors are placed in detention for minor offences or infractions that do not justify deprivation of liberty.

One of the most serious findings of the Working Group relates to six adolescents who are detained at the Experimental Health Unit (Unidade Experimental de Saúde) in São Paulo which the Working Group was able to visit. These individuals were detained for serious and dangerous crimes and were close to reaching the three year maximum sentences required by law. They were then transferred to the Experimental Health Unit where they have been institutionalised without due legal process. The Working Group is concerned by the absence of legal basis for the detention of these individuals particularly in light of the fact that there is no clear deadline to the length of their detention. The Working Group is also informed that there is no effective judicial review over these cases. Some members of the judiciary considered that the detention in these cases could also be unconstitutional. To justify the deprivation of liberty of these individuals and to respond to the social and media pressure to keep them in detention, a law dating back to 1930s has been used to provide legal support for the detention. This law does not correspond with the principles and norms enshrined in the Brazilian Constitution and in international human rights law. The Working Group is of the view that this type of deprivation of liberty is arbitrary under international human rights standards particularly if it is without legal basis. The Working Group was also able to gather information regarding the deprivation of liberty of persons in the context of psychiatric institutions and was informed that some of these institutions are often used to detain drug addicts as well.

The Working Group notes that the problems it has encountered during its visit have been discussed already within various fora in Brazil. Most of the problems it has encountered are not new and most of those interviewed both in Government and in non-government meetings agree that these existing challenges need to be resolved. Members of the judiciary also recognise that there is a need for robust changes in order to restructure the justice system and allow for better access to justice. This is a positive revelation as the realization of the problems and challenges will hopefully drive actions and initiatives to effectively address these issues.

The Working Group acknowledges the difficult challenges that Brazil is facing in tackling rising incidents of criminal activities such as homicide, gang violence, drug and human trafficking and so forth. In this context, it notes that often public and social pressure support governmental laws and policies that are tough on crime. However, the Working Group cautions that Government policies and actions relating to deprivation of liberty at the Federal and State level should fully adhere and conform to international human rights standards, the same ones that the Federal Republic of Brazil has endorsed through the agreements it has signed and ratified. These international standards clearly provide protection against arbitrary deprivation of liberty.

In conclusion, the Working Group would like to reiterate that it is well aware of the positive legislative changes in relation to deprivation of liberty in Brazil. It encourages the Government to ensure that such developments are accompanied by effective implementation measures in strict compliance with international human rights standards. It also invites the Government to consider the issues that it has raised today.

These are the preliminary observations of the Working Group at the end of its visit. A final report on the visit will be presented to the Human Rights Council in 2014. In its report, the Working Group will submit several recommendations to the Government.